Case Nos. 87-WPC-1
    87-WPC-2
    87-WPC-3
    87-WPC-4

In the Matter of

RON BRUMMITT,
CHARLES D. GAMMON,
GERALD LUCAS,
CLIFFORD GAIDRICH,
    Complainants

    v.

CITY OF ENID,
    Respondent

   On December 11, 1986, the respondent, City of Enid (The City) filed a motion to dismiss these consolidated proceedings alleging non-compliance with the filing period of 33 USC §1367(b). Section 1367(b) of the Water Pollution Control Act (Act) provides in pertinent part that

Any employee or a representative of employees who believes that he has been fired or otherwise discrinated against by any person in violation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination.

   The City asserts three alternative dates for the date the alleged firing or other discrimination against

complainants occurred. The first date is August 19, 1986. This is the date they were suspended without pay by Jerry Smith. The second date is August 25, 1986. This is the date they received notice of the decision of the City of Enid Review Board. The third date is September 1, 1986. This is the date each received a pay check from the City for a sum less than what each would have earned during a particular pay period. The City further asserts that using any of these three dates, the complainant's complaints being filed October 9, 1986 with the Wage and Hour Division, U.S. Department of Labor was not timely.

   The City further asserts that as the complainants filed their complaint on October 9, 1986 with the Wage and Hour Division, U.S. Department of Labor, which is more than 30 days from the latest date of discrimination' it is barred as a matter of law.

   While I could not locate any published legal decisions interpreting section 1367(b) of the Act, cases involving retaliatory discharge have been decided under the Labor Management Relations Act, 1947, §301, 29 U.S.C.A. §185 and the National Labor Relations Act, §10(b), as amended, 29 U.S.C.A. §160(b).

   In the case of Metz v. Tootsie Roll Industries, Inc., 715 F2d 299 (7th Cir. 1983), the Court held that the six month statute of limitations in a suit brought by an employee against the union for breach of duty of fair representation and against her employer for breach of a collective bargaining agreement commenced to run at such time as the union, after being notified of the employee's grievance failed to take action to process the grievance or to initiate grievance procedures. Such failure or refusal by the union amounted to a "final decision." In dictum, the Court set out the general rule that the limitations period begins to run "* * * when the Claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged [violation]."

   In applying the general rule in Metz the Court stated that the failure of the union to take action to process the grievance or to initiate grievance procedures, constituted a "final decision." At this point, the limitations period commenced as the Claimant discovered, or in the exercise of reasonable diligence should have discovered that fact. Compare Vallone v. Local Union No. 705, International Brotherhood, 755 F2d 520 (7th Cir. 1984).

   Turning to the City's first date - August 19, 1986. The City argues that when the complainants were suspended without pay, such action constituted a "retaliation." I do not agree. The City's procedures prohibit a supervisor from

suspending an employee without pay. Since the City was acting in violation of its own procedures, a person exercising reasonable diligence would not, in my opinion, believe the limitations period commenced. Furthermore, this section should not be construed to bar a "whistle-blower" where a respondent is not adhering to its own procedures.

    Turning to the City's second alternative date - August 25, 1986. On this date the City of Enid Review Board (Board) recommended certain actions be initiated against the complainants.¹ The Board's determination is merely a recommendation. An automatic review of the Board's determination is made by the City Manager who may affirm, reverse, or modify the determination. In my opinion, the recommendation of the Board does not constitute notice as it was not a final decision but merely a recommendation.

   Turning to the City's third alternate date - September 1, 1986. In my opinion, a reasonable person in the exercise of reasonable diligence would not discover that a pay check in an amount less than one's normal check constituted a "retaliatory" action so as to commence the notice period. The mere receipt of such a check informs the payee of nothing as it relates to section 1367(b)

   In the instant case, the City Manager made a final decision on September 9, 1986 and notified the complainants in writing of that final decision. In my opinon, this final decision constituted a "firing or alleged discrimination" which commenced the 30 day limitation period. As the complainants applied for a review of such action within 30 days, the claims are not barred by the statute of limitations.

   It is ORDERED that the motion to dismiss² is DENIED.³

       G. MARVIN BOBER
       Administrative Law Judge

Dated DEC 16 1986
Washington, D.C.

GMB/at

¹The parties disagree as to whether complainants received written notification of the recommendation of the Board.

²In its motion the City also alleged that complainants' conduct does not come within the terms of section 1367(a). I am holding this issue in abeyance, and will consider it in my recommended decision.

³As time is of the essence in this proceeding, a motion for reconsideration will not be entertained as to this decision.